Opinion: Why the US should investigate Russian aggression in Ukraine as genocide

While President Joe Biden has been outspoken about Russian war crimes, his administration has responded more cautiously to any reference to the genocide in Ukraine. That’s right; Genocide is a complex legal concept, considered by many experts to be difficult to apply and widely misused.

Genocide has often been described as the “crime of crimes” and a United Nations special rapporteur on the subject has called it “the most serious violation of human rights that can be committed”. Genocide is one of the most widely recognized crimes under international law and is considered an indicator of a descent into barbarism.
Legally, genocide is defined by a 1948 UN treaty “as a crime committed with the intent to destroy a national, ethnic, racial or religious group, in whole or in part.”

Contrary to popular understanding of the term, finding a situation to be genocide does not necessarily mean that there is an overwhelming number of victims. It is not only the severity or brutality of the atrocities that defines genocide, but the degree to which the violence and repression express the intent to destroy a group.

In this way, by viewing the war in Ukraine through the lens of genocide, we can better explore the underlying patterns and purpose of Russia’s brutal violence and help Ukraine make the case for accountability.

One of the justifications Russian leader Vladimir Putin put forward in the run-up to the invasion of Ukraine was the idea that there is no legitimate state that represents the right of the Ukrainian people to self-determination. In a February 21 speech, Putin explained that “since time immemorial, people living in the southwest of what has historically been Russian land have called themselves Russians and Orthodox Christians.” He went on to portray modern Ukraine as a false construct, presenting supporters of Ukrainian sovereignty as terrorists and neo-Nazis.
Given this rhetoric, coupled with Russia’s military actions and what UN officials have described as attacks on civilians, the term genocide may well apply to what we are seeing in Ukraine. The designation of a genocide in Ukraine would be appropriate if there were sufficient evidence to show that Russia’s atrocities express a determined effort to deny the existence of the Ukrainian people.
While it is too early at this point to make this determination with any certainty, the US needs to investigate the matter rigorously. It is worth noting that one of the most significant forms of assistance to Ukraine by the US and its allies is the sharing of intelligence gathered about Russian military actions, which may well provide insights into underlying intent. Last week, German intelligence intercepted Russian communications about the deliberate targeting and killing of Ukrainian civilians.

The concept of genocide is particularly prominent in some of the nations that emerged from Soviet control in the post-Cold War era. Several countries have drafted genocide laws that define the crime more broadly than the international definition.

Estonia, for example, has a domestic law that recognizes genocide against a group that “resists the occupation.” In 2019, the European Court of Human Rights upheld a ruling by the Lithuanian courts in which a Soviet operative was found guilty of genocide against the Lithuanian people on the basis of a similarly broader national law. And, among scholars, there is widespread support for the idea that when national groups were included in the Genocide Convention’s definition of the crime, this was done to protect collectivities much like Ukrainians from actors seeking to deny their right to exist.

It is also important that discussions of the genocide in Ukraine focus on issues of prevention and reduction of civilian casualties. The 1948 treaty on the subject is called the Convention on the Prevention and Punishment of the Crime of Genocide and was created in direct response to the horrors of the Holocaust.

The treaty was conceived as a mechanism to mobilize international action to prevent future genocide from occurring, echoing the moral commitment of the phrase “Never Again.” While the document provides minimal guidance on exactly what policy responses are required, the US and other states that have ratified the treaty are obligated to act to prevent genocide.

For these reasons, the Biden administration should make clear public statements that it takes allegations of genocide in Ukraine seriously and should establish a special body to review Russia’s atrocities. By considering whether the war in Ukraine amounts to genocide, we can better understand the intent of Russian aggression, justify greater protection for civilians, and lay the groundwork for future accountability efforts.

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